Judge Denies Request for Philadelphia Testosterone Mass Tort

In June 2014, the U.S. Judicial Panel for Multidistrict Litigation (JPML) consolidated all federal testosterone lawsuits into the Northern District of Illinois for pre-trial proceedings. Both the plaintiffs and the defendants requested that a similar consolidation take place in Pennsylvania state courts, where a number of cases have been filed, but that request was recently denied.

The parties wanted to create a mass tort in Philadelphia, to better manage pre-trial proceedings there, but Administrative Judge Jacqueline F. Allen refused to allow it.

Parties Argue that Consolidation Would Facilitate State-Federal Cooperation

According to the Legal Intelligencer, plaintiffs filed a petition with the court in February 2016, arguing that consolidation of the 31 cases currently pending in the Philadelphia Court of Common Pleas would increase efficiency and reduce the risk of conflicting rulings and duplicative testimony. They added that consolidation would be prudent, particularly since over 5,000 federal cases are pending, and since more Pennsylvania state cases are likely to be filed in the coming months.

Consolidation, the plaintiffs asserted, would help facilitate state-federal cooperation. There are already discrepancies between state and federal cases, particularly in discovery schedules, and a mass tort would help bring the proceedings more closely in line. They added that without such a designation, conflicts could arise between state and federal courts, leading to “expensive, duplicative, and frankly contentious” deposition scheduling.

The defendants agreed, and joined in the request in March.

Justice Allen denied the request without explaining why. This is the second such petition (the first involving Levaquin lawsuits) requesting consolidation that she has denied since taking over as administrative judge this year.

Plaintiffs Argue that Defendants Misled Them

The plaintiffs in Philadelphia and in the Illinois MDL claim that testosterone-replacement drug makers pushed aggressive advertising campaigns to convince men to ask their doctors for their products, essentially “creating a disease” that testosterone was supposed to cure.

The FDA approved testosterone products only for the treatment of hypogonadism, which is a medical condition causing low testosterone levels. Manufacturers of products like AndroGel, however, through their media and online advertisements, linked “low-T” with common symptoms like fatigue and muscle loss, and as a result, many men without hypogonadism ended up taking testosterone drugs.

This became a concern especially after some studies revealed that testosterone could increase risk of heart attack and stroke. A PlOS One study published in 2014 reported that testosterone doubled the risk of men aged 65 and older having a heart attack, and tripled the risk for younger men with a family history of heart disease. An earlier study published in JAMA in 2013 found similar results.

Manufacturers downplayed these risks, however, and it worked—more and more men started taking testosterone, often without the appropriate testing or diagnosis. In a 2014 study published in the Journal of Clinical Endocrinology & Metabolism, researchers found that 40.2 percent of men did not have a testosterone test in the 180 days before beginning therapy, and 50 percent had only one test.

Currently, the first bellwether trials in the testosterone MDL are scheduled to begin between April and November 2017.